Background

Economic theory of vertical restraints

Economic theory and competition law

Should distributors have more protection?

Vertical restraints put to the test of economic analysis

Structure of distribution law - Book plan

General bibliography

Introduction

Localizing the anticompetitive effects

Effect on trade between Member States

Scope ratione loci

Concept of an undertaking

Intra-group agreements

Scope ratione personae

Applicability of competition law to vertical agreements

Definition of the relevant market

Anticompetitive object or effect

Appreciability threshold

Concept of agreement and concerted practice

Prohibition of vertical restraints

Block exemptions

Individual exemptions and rule of reason

Exemption of vertical restraints

Control of vertical restraints

Prohibition

Exoneration

Restrictive agreements

Principle

Applications

Abuse of dominant position

Exclusive purchase/Exclusive supply

Resale outside network

International agreement

Exclusive distribution agreements

Manufacturer's guarantee

Protection of the brand

Protecting the network against third parties

Relations between the parties

Selective distribution

Hardcore restrictions

Individual exemptions

Rule of reason

Prohibition of restrictive agreements and individual exemptions

Distribution of new motor vehicles : Regulation No 330/2010

After-sales : Regulation No 461/2010

Block exemption

Motor vehicle distribution agreements

Merger control

Franchising

Commercial agency and competition

EU harmonization

International agency

Commercial agents

This book provides a wide-ranging review of the European rules relating to distribution: exclusive purchase and exclusive supply, exclusive and selective distribution, motor vehicle distribution, franchises, commercial agents.

European Distribution Law

In new Motor Vehicle Regulation No 461/2010, the Commission has adopted an original solution which consists in making the aftermarket mainly subject to the conditions of the general BER on vertical restraints and to provisions specific to the motor vehicle sector. According to the Commission, the fact that there is a separate motor vehicle aftermarket on which effective competition depends on the  …

In new Motor Vehicle Regulation No 461/2010, the Commission has adopted an original solution which consists in making the aftermarket mainly subject to the conditions of the general BER on vertical restraints and to provisions specific to the motor vehicle sector. According to the Commission, the fact that there is a separate motor vehicle aftermarket on which effective competition depends on the level of interaction between authorized repairers operating within a network and independent authorized operators, makes it mandatory to provide for specific conditions of exemption, in particular to ensure the security of end users and guarantee access by repairers to essential inputs such as spare parts and technical information (point 13). Those specificities make it necessary to lay down “stricter requirements concerning certain types of severe restrictions of competition that may limit the supply and use of spare parts in the motor vehicle aftermarket” (point 15). 

The Commission considers that, “Because of the generally brand-specific nature of the markets for repair and maintenance services and for the distribution of spare parts, competition on those markets is inherently less intense compared to that on the market for the sale of new motor vehicles” . The premise of an aftermarket specific to each brand combined with the reduction from 100% to 30% of the market share threshold to qualify for the exemption in respect of qualitative selective distribution leads the Commission to consider that, generally, manufacturers and their networks cannot qualify for block exemption insofar as their market share is greater than 30%. The Commission very clearly defends the recourse to purely qualitative selective distribution with respect to the aftermarket for a large majority of vehicles. This premise avoids limiting the number of authorized repairers and obliges to authorize any candidate who satisfies the required qualitative criteria. However, it already appears that on some markets, there are too many authorized repairers as compared to potential clients. National courts adopt a more realistic position than the Commission and more easily recognize the freedom of the supplier to refuse to approve a candidate in a selective distribution network .

Moreover, the benefit of the legal warranty or of the contract guarantee was traditionally granted within all the networks irrespective of the place where consumers were having the repair and maintenance works for their vehicles done, unless of course the claim for warranty resulted from a defective repair or maintenance carried out outside the network. The new Motor Vehicle Guidelines have changed that system completely and have extended the obligation to grant the service to extended warranty, notwithstanding any maintenance or repair outside the network. The opposition to the repair and maintenance obligation within the network as part of the paid-for extended warranties, taken out at the consumer's election, seems to be lacking legal basis under competition law.

For an example (France) see CA Paris, 30 September 2015, LawLex201500000119JBJ.

European Distribution Law

90. Background

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

90. Background

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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